Is it unnecessary for a party alleging a section 15 violation to produce evidence to prove the elements of discrimination?

The petitioner notes that although the claimant bears the onus of proof of infringement of her equality rights in a purposive sense through reference to contextual factors, it may be unnecessary for a party alleging a section 15 violation to produce evidence to prove the elements of discrimination where “…it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision”. [Law v. Canada, supra, at para. 88(10). Also see paras. 77-79].

A party alleging a Charter section 15 infringement is not required to prove matters not within her knowledge, such as whether the legislature had a discriminatory purpose in mind when enacting the impugned legislation. [Law v. Canada, supra, at para. 80].

Equality is clearly a comparative concept, which requires identification of appropriate comparators. That in turn requires “…an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.” [Law v. Canada, supra, at para. 88(6)].